GREEN PLAINS SPE LLC,

as Issuer

and

THE GUARANTOR PARTY HERETO

JUNIOR SECURED MEZZANINE NOTES DUE 2026

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INDENTURE

DATED AS OF FEBRUARY 9, 2021

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WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee





 

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TABLE OF CONTENTS

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Article I DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................2

Section 1.1 Definitions.........................................................................................................................2

Section 1.2 Other Definitions...............................................................................................................14

Section 1.3 Trust Indenture Act Term.....................................................................................................17

Section 1.4 Rules of Construction.........................................................................................................17

Article II THE NOTES.....................................................................................................................18

Section 2.1 Form and Dating; Terms.....................................................................................................18

Section 2.2 Execution and Authentication...............................................................................................20

Section 2.3 Registrar; Paying Agent.......................................................................................................20

Section 2.4 Paying Agent to Hold Money in Trust.....................................................................................21

Section 2.5 Holder Lists...................................................................................................................21

Section 2.6 Book-Entry Provisions for Global Securities.............................................................................22

Section 2.7 Replacement Notes...........................................................................................................24

Section 2.8 Outstanding Notes.............................................................................................................24

Section 2.9 Treasury Notes.................................................................................................................24

Section 2.10 Temporary Notes...........................................................................................................25

Section 2.11 Cancellation...................................................................................................................25

Section 2.12 Default Interest...............................................................................................................25

Section 2.13 CUSIP Number.............................................................................................................25

Section 2.14 Special Transfer Provisions.................................................................................................26

Article III REDEMPTION AND PREPAYMENT.....................................................................................28

Section 3.1 Voluntary Redemption; Applicable Premium...............................................................................28

Section 3.2 Mandatory Redemptions.....................................................................................................29

Section 3.3 Notes Redeemed in Part.....................................................................................................30

Article IV COVENANTS.................................................................................................................30

Section 4.1 Payment of Notes.............................................................................................................30

Section 4.2 Use of Proceeds...............................................................................................................31

Section 4.3 Projects.........................................................................................................................32

Section 4.4 Limitation on Incurrence of Indebtedness.................................................................................36

Section 4.5 Intentionally Omitted.........................................................................................................36

Section 4.6 Financial Statements and Reports...........................................................................................36

Section 4.7 Inspection.......................................................................................................................38

Section 4.8 To Pay and Perform Obligations...........................................................................................38

Section 4.9 Intentionally Omitted.........................................................................................................39

Section 4.10 Books and Records.........................................................................................................39

Section 4.11 Payment of Taxes; Corporate Existence; Maintenance of Properties.................................................39

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Section 4.12 Compliance with Laws and Property Documents.......................................................................40

Section 4.13 Litigation.......................................................................................................................41

Section 4.14 Loan to Value.................................................................................................................41

Section 4.15 Intentionally Omitted.........................................................................................................41

Section 4.16 Intentionally Omitted.........................................................................................................41

Section 4.17 Restricted Payments; Equity Collateral; Pledged Equity Interests.....................................................41

Section 4.18 Transactions with Affiliates..................................................................................................42

Section 4.19 Change of Control; Encumbrances on and Transfers of Collateral...................................................42

Section 4.20 Environmental Covenants...................................................................................................44

Section 4.21 Creation of Subsidiaries.  .................................................................................................46

Section 4.22 Warranty of Title..............................................................................................................46

Section 4.23 Special Purpose Entity......................................................................................................46

Section 4.24 Insurance......................................................................................................................46

Section 4.25 Restoration. .................................................................................................................49

Section 4.26 Care and Use of the Property..............................................................................................51

Section 4.27 Financial Covenant. .........................................................................................................52

Section 4.28 Suits and Other Acts to Protect the Property............................................................................52

Section 4.29 Trustee’s Right to Perform Issuer’s Obligations.........................................................................52

Section 4.30 Liens and Encumbrances....................................................................................................52

Section 4.31 Stay, Extension and Usury Laws..........................................................................................53

Section 4.32 Estoppel Statements........................................................................................................53

Section 4.33 Further Assurances..........................................................................................................53

Section 4.34 Qualifying Appraisal.........................................................................................................54

Article V PERMITTED SENIOR FACILITY; PROPERTY RELEASES AND SUBSTITUTIONS.........................54

Section 5.1 Permitted Senior Facility.....................................................................................................54

Section 5.2 Additional Properties; Release and Substitution of Properties.........................................................58

Article VI DEFAULTS AND REMEDIES.............................................................................................61

Section 6.1 Events of Default...............................................................................................................61

Section 6.2 Acceleration...................................................................................................................63

Section 6.3 Other Remedies...............................................................................................................64

Section 6.4 Control by Majority...........................................................................................................64

Section 6.5 Limitation on Suits.............................................................................................................64

Section 6.6 Rights of Holders of Notes to Receive Payment.........................................................................65

Section 6.7 Collection Suit by Trustee...................................................................................................65

Section 6.8 Trustee May File Proofs of Claim...........................................................................................65

Section 6.9 Priorities.........................................................................................................................66

Section 6.10 Undertaking for Costs......................................................................................................66

Article VII TRUSTEE.......................................................................................................................67

Section 7.1 Duties of Trustee...............................................................................................................67

Section 7.2 Rights of Trustee...............................................................................................................68

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Section 7.3 Individual Rights of Trustee..................................................................................................69

Section 7.4 Trustee’s Disclaimer...........................................................................................................70

Section 7.5 Notice of Defaults.............................................................................................................70

Section 7.6 Intentionally Omitted.........................................................................................................70

Section 7.7 Compensation and Indemnity...............................................................................................70

Section 7.8 Replacement of Trustee.......................................................................................................71

Section 7.9 Successor Trustee by Merger, Etc..........................................................................................72

Section 7.10 Eligibility; Disqualification...................................................................................................73

Section 7.11 Preferential Collection of Claims Against the Issuer.....................................................................73

Section 7.12 Trustee’s Application for Instructions from the Issuer...................................................................73

Section 7.13 Limitation of Liability.......................................................................................................73

Article VIII CERTAIN INDEMNIFIED MATTERS.................................................................................74

Article IX AMENDMENT, SUPPLEMENT AND WAIVER.......................................................................75

Section 9.1 Without the Consent of the Holders........................................................................................75

Section 9.2 With the Consent of the Holders...........................................................................................75

Section 9.3 Revocation and Effect of Consents.........................................................................................77

Section 9.4 Notation on or Exchange of Notes.........................................................................................77

Section 9.5 Payment for Consent.........................................................................................................78

Section 9.6 Trustee to Sign Amendments, Etc..........................................................................................78

Article X COLLATERAL.................................................................................................................78

Section 10.1 Collateral......................................................................................................................78

Section 10.2 Suits To Protect the Collateral..............................................................................................79

Section 10.3 Collateral Account..........................................................................................................79

Section 10.4 Disbursement Account......................................................................................................79

Section 10.5 Obion Soy Project..........................................................................................................80

Article XI NOTE GUARANTY...........................................................................................................81

Section 11.1 Note Guaranty...............................................................................................................81

Section 11.2 Execution and Delivery.....................................................................................................83

Section 11.3 Subrogation...................................................................................................................83

Section 11.4 Severability...................................................................................................................84

Section 11.5 Limitation of Guarantors’ Liability.........................................................................................84

Section 11.6 Benefits Acknowledged.....................................................................................................84

Article XII MISCELLANEOUS.........................................................................................................84

Section 12.1 Notices.......................................................................................................................84

Section 12.2 Certificate and Opinion as to Conditions Precedent...................................................................86

Section 12.3 Statements Required in Certificate or Opinion...........................................................................86

Section 12.4 Rules by Trustee and Agents...............................................................................................86

Section 12.5 No Personal Liability of Directors, Officers, Employees and Stockholders.........................................87

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Section 12.6 Governing Law...............................................................................................................87

Section 12.7 Waiver of Trial by Jury.....................................................................................................88

Section 12.8 No Adverse Interpretation of Other Agreements.......................................................................88

Section 12.9 Successors...................................................................................................................89

Section 12.10 Severability.................................................................................................................89

Section 12.11 Counterpart Originals.....................................................................................................89

Section 12.12 Table of Contents, Headings, Etc........................................................................................90

Section 12.13 Acts of Holders.............................................................................................................90

Section 12.14 Trustee’s Discretion.......................................................................................................91

Section 12.15 USA Patriot Act...........................................................................................................91

Section 12.16 Force Majeure.............................................................................................................91

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This INDENTURE, dated as of February 9, 2021 (the “Effective Date”), by and among GREEN PLAINS SPE LLC, a Delaware limited liability company, as issuer  (the “Issuer”), GREEN PLAINS INC., an Iowa corporation (the “Guarantor”),  and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (in such capacity and not in its individual capacity, and together with its permitted successors and assigns in such capacity, the “Trustee”; and, together with the Issuer, each a  “Party” and, collectively, the “Parties”).    

WITNESSETH

WHEREAS, the Issuer has duly authorized (a) the issuance and the sale to the Holders on the Effective Date pursuant to the Note Purchase Agreement of those certain Junior Secured Mezzanine Notes due 2026 in the initial Aggregate Principal Amount of One Hundred Twenty-Five Million Dollars ($125,000,000) (the “Initial Notes”) and (b) the issuance and the sale to the Holders of any PIK Notes (as defined below) issued following the Effective Date in accordance with the terms of this Indenture (together with the Initial Notes, collectively, the “Notes”);

WHEREAS, the Issuer owns one hundred percent (100%) of the Equity Interests (defined below) in each of (a) Green Plains Obion LLC, a Tennessee limited liability company (“Obion PropCo”), which owns the fee simple title to that certain real property located at 2098 McDonald Road, Rives, Tennessee 38253 and more particularly described in the Obion Security Instrument (the “Obion Property”), and (b) Green Plains Mount Vernon LLC, a Delaware limited liability company (“Mt. Vernon PropCo”; together with Obion PropCo and any Additional Property Owner, collectively, the “PropCos”; and the PropCos, together with Issuer, collectively, the “Obligor Parties” and each, individually, an “Obligor Party”), which owns the fee simple title to that certain real property located at 8999 W. Franklin Road, Mt. Vernon, Indiana 47620 and more particularly described in the Mt. Vernon Security Instrument (the “Mt. Vernon Property”);

WHEREAS, the Issuer intends to use the proceeds of the issuance and sale of the Notes pursuant to the Note Purchase Agreement (the “Note Proceeds”) to cause the PropCos to undertake and complete the Projects at the Properties on the terms and conditions set forth in this Indenture; and

WHEREAS, to secure the Obligations, the Issuer has granted (or caused each PropCo to grant, as applicable) to the Trustee, for the ratable benefit of the Holders of the Notes, a Lien on and security interest in the Equity Interests in the PropCos, the Properties and the other Collateral, in each case, in accordance with the provisions of this Indenture and the Collateral Documents executed in connection herewith.

NOW, THEREFORE, the Parties agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.

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ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

SECTION 1.1     Definitions

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“Additional Property” means any Qualified Additional Property that becomes part of the Collateral in accordance with (and subject to) the terms and conditions set forth in Section 5.2.

“Affiliate” means, with respect to any Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such Person.  For the purposes of this definition, “control” means, with respect to any Person, the possession, directly or indirectly, of the power to direct the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings that correspond to the foregoing.

“Agent” means any Registrar, co-register, Paying Agent or additional paying agent.

“Aggregate LTV” means, as of any date of determination, the ratio (expressed as a percentage) of (a) the sum of (i) the Aggregate Outstanding Principal Amount on such date and (ii) the aggregate outstanding principal balance of any Senior Facility on such date, to (b) the Fair Market Value of the Properties as set forth in the most recent Qualifying Appraisal delivered to the Trustee in accordance with Section 4.34.

“Aggregate Outstanding Principal Amount” means, as of any date of determination, the sum of the Outstanding Principal Amounts of all of the Notes.

“Allocated Principal Amount” means, for each Property as of the Effective Date, the amount set forth on Schedule I, as such Schedule I may be amended from time to time in connection with any Additional Property Option, Mt. Vernon Release Option and/or Mt. Vernon Substitution Option.

“Applicable Law” means, with respect to any Person, any law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is or purports to be binding upon or applicable to such Person, as the same may be amended from time to time unless expressly specified otherwise herein.

“Applicable Premium” means, with respect to any Note on any applicable Redemption Date, the greater of:

(a)1.00% of the portion of the Outstanding Principal Amount of such Note that is being redeemed; and

(b)the excess of:

(i)the sum, as of such Redemption Date, of the respective present values of all then remaining payments of principal and interest under such Note that is being

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redeemed for the period from and including such Redemption Date through and including the Open Date, assuming that (A) all such scheduled payments are timely made and that the remaining Outstanding Aggregate Principal Amount and all accrued interest thereon shall be paid in full on the Open Date and (B) no other redemptions or acceleration of the Notes or Obligations shall be made or occur, determined by discounting each such payment to the present value thereof as of such Redemption Date at the Discount Rate; over

(ii)the portion of the Outstanding Principal amount of such Note that is being redeemed.

“Approved Project Expenses” means the Project Expenses that are set forth in any Project Budget.

“Arranger-Managed Holders” means Holders that are funds, accounts and other Persons that are managed, or whose assets or funds are managed, by BlackRock Financial Management, Inc., or its Affiliates and its and their respective successors and assigns, pursuant to management contracts, investment advisory contracts or otherwise. 

“Assignment of Contracts” means, individually and/or collectively, as the context may require, (a) that certain Assignment of Agreements, Plans, Licenses and Permits by each PropCo in favor of Trustee with respect to the applicable Property, in each case as the same may be amended, modified, restated or supplemented from time to time in accordance with the Note Documents, and (b) any Additional Assignment of Contracts.

“Bankruptcy Code”  means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended and as now and hereafter in effect, or any successor statute.

“Bankruptcy Law” means the Bankruptcy Code, or any other United States federal or state bankruptcy, insolvency or similar law, fraudulent transfer or conveyance statute and any related case law. 

“Board of Directors” means:  (a) with respect to the Issuer or any of its Subsidiaries, its board of directors, manager(s) or any duly authorized committee thereof; (b) with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and (c) with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.

“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.

“Capital Expenditures” means for any period, expenditures incurred for items that are capitalized under GAAP.

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“Certificated Notes” means Notes that are in the form of Exhibit A attached hereto, including the applicable legend or legends set forth in Exhibit  A.

“Change of Control” shall mean (a) with respect to the Issuer, if at any time the Issuer ceases to be wholly owned (directly or indirectly) and controlled by the Guarantor and (b) with respect to either PropCo, if at any time either such PropCo ceases to be (i) wholly owned indirectly and controlled by the Guarantor and (ii) wholly owned directly by the Issuer.

“Change Order” means any change in, modification to or deviation from any Project Plans and Specifications or any Material Construction Contract. 

“Code” means the Internal Revenue Code of 1986, as amended from time to time and the regulations promulgated thereunder.

“Collateral” has the meaning set forth in the Pledge Agreement.

“Collateral Documents” means, collectively, (a) the Security Instrument, (b) the Pledge Agreement, (c) any Additional Property Collateral Documents and (d) any financing statements, fixture filings or other instruments and documents executed and/or delivered pursuant to this Indenture or any of the foregoing (as the same may be amended, modified or supplemented in accordance with this Indenture) pursuant to which any Collateral is pledged, mortgaged, assigned or granted to or on behalf of the Trustee.

“Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, located at 1100 N. Market Street, Wilmington, Delaware 19890, or such other address as the Trustee may designate from time to time by written notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).

“Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law or any other person with like powers.

 “Default” means any event that, after notice or passage of time, or both, would be, an Event of Default.

“Default Rate” means, with respect to any Note, a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) three percent (3%) plus the then-current interest rate on such Note.

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 as the Depositary, until a successor shall have been appointed pursuant to Section 2.6(b), and, thereafter, “Depositary” shall mean or include such successor.

“Discount Rate” means, as of any date, a rate per annum equal to the greater of : (a) two percent (2%) or (b) the Treasury Rate as of such date plus one percent (1%).

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“DTC” means The Depository Trust Company.

“Effective Date” means the date of this Indenture.

“Environmental Indemnity Agreement” means (a) that certain Unsecured Indemnity Agreement, dated as of the Effective Date, by and among PropCos and Guarantor in favor of Trustee, as the same may be amended, modified, restated or supplemented from time to time in accordance with the Note Documents, and (b) any Additional Environmental Indemnity Agreement.

“Environmental Laws” has the meaning set forth in the Environmental Indemnity Agreement.

“Environmental Permits” has the meaning set forth in the Environmental Indemnity Agreement.

“Equity Collateral Enforcement Action” means any UCC foreclosure, assignment-in-lieu of foreclosure, “strict foreclosure” under the UCC, exercise of voting rights under the Pledge Agreement or other action to acquire or exercise Control over the Pledged Equity Interests. 

“Equity Interests” means with respect to any Person, all (a) corporate stock or shares, in the case of a corporation; (b) shares, interests, participations, rights or other equivalents (however designated) similar to corporate stock, in the case of an association or other business entity other than a corporation; (c) partnership (whether general or limited) or membership interests, in the case of a partnership or limited liability company; (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; and (e) all warrants, options or other rights to acquire any of the foregoing (other than a debt security that is convertible into, or exchangeable for, any of the foregoing)  with respect to any Person.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Fair Market Value” means, with respect to any Property, the fair market value of such Property as determined by a Qualifying Appraisal acceptable to the Trustee, at the direction of the Required Holders and at the expense of the Issuer.

“Fiscal Year” means each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Notes.

“Force Majeure” means, with respect to the performance by any Person of any Obligations, forces beyond such Person’s control, including, without limitation, strikes, work stoppages, accidents, closures and/or shutdowns mandated by applicable Governmental Authorities and other direct effects of any pandemics or epidemics, labor shortages, raw material shortages, weather, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of equipment, utilities, communications or computer (software and hardware) services, and any other similar causes or events not within such Person’s control; provided,  however, that in no event shall any Person’s failure to pay or perform any monetary Obligations constitute Force Majeure.

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“GAAP” means generally accepted accounting principles in effect in the United States from time to time.

“Global Note Legend” means the legend identified as such in Exhibit A hereto.

“Global Notes” means the Notes in global form that are in the form of Exhibit A hereto, including the applicable legend or legends set forth in Exhibit A.

“Governmental Authority” means any federal, state, territorial, municipal, foreign or other governmental department, agency, commission, board, bureau, court, tribunal, instrumentality, political subdivision, authority, corporation or body, regulatory or self-regulatory organization or other entity or officer exercising executive, legislative, judicial, statutory, regulatory or administrative functions for or pertaining to any government or court (including any supranational bodies such as the European Union), in each case whether the same is or is not associated with the United States or any state, district or territory thereof, or any other foreign entity or government.

“Guaranty” means, as applied to any Indebtedness of another Person, to guaranty, directly or indirectly, in any manner, any part or all of such Indebtedness.  “Guaranteed” and “Guaranteeing” shall have meanings that correspond to the foregoing.

“Hazardous Materials” has the meaning set forth in the Environmental Indemnity Agreement.

“Holder” means a Person in whose name a Note is registered on the Registrar’s books.

“Improvements” has the meaning set forth in the Security Instrument.

“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guaranty or otherwise become liable in respect of such Indebtedness or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Indebtedness or other obligation on the balance sheet of such Person. “Incurrence” “Incurred,” “Incurrable” and “Incurring” shall have meanings that correspond to the foregoing. 

“Indebtedness” means, with respect to any Person, as of any date of determination, any of the following (without duplication) as of such date of determination, whether recourse with respect to the same is to all or a portion of the assets of such Person or any of its Affiliates, or the same if non-recourse, of: (a) all indebtedness or liability of such Person (including, without limitation, indebtedness in the form of mortgage or mezzanine debt or preferred equity and other amounts for indebtedness); (b) obligations evidenced by bonds, debentures, notes, or other similar instruments, (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise assure a creditor against loss; (g) obligations secured by any Liens (other than the Permitted Encumbrances), whether or not such obligations have been assumed.

“Indenture” means this Indenture, as amended or supplemented from time to time.

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“Interest Payment Date” means the fifteenth (15th) day of each March, June, September and December during the term of this Indenture (or, if such day is not a Business Day, the immediately succeeding Business Day) up to and including the final Interest Payment Date on the Maturity Date; provided,  however, the first (1st) Interest Payment Date hereunder shall be June 15, 2021. 

“Interest Period” means, in connection with the calculation of interest accrued on the Notes hereunder with respect to any Interest Payment Date (including the Maturity Date), the period commencing on and including the immediately preceding Interest Payment Date and ending on and including the fourteenth (14th) day of the third (3rd) succeeding calendar month thereafter; provided,  however, that the Interest Period for the Interest Payment Date occurring on June 15, 2021 shall be the period commencing on February 10, 2021, and ending on and including June 14, 2021. With respect to the calculation of interest amounts payable pursuant to Section 4.1, each Interest Period shall be equal to ninety (90) days.

“Investment” means, with respect to any Person, all direct or indirect investments by such Person in other Persons in the form of loans, advances (or other extensions of credit) or capital contributions (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person), including the following: (a) the purchase or acquisition of any Equity Interest or other evidence of beneficial ownership in another Person; and (b) the purchase or acquisition of the obligations of another Person, but shall exclude: (i)  any Other Permitted Debt;  (ii) the acquisition of property and assets (including inventory, supplies, materials and equipment or licenses or leases of intellectual property); and (iii) prepaid expenses and workers’ compensation, utility and similar deposits, in the ordinary course of business.  Except as otherwise provided in this Indenture, the amount of an Investment shall be determined at the time the Investment is made and without giving effect to subsequent changes in value.

“Issuer” has the meaning set forth in the preamble hereto, until a successor replaces it in accordance with the applicable provisions of this Indenture and, thereafter, means the successor.

“Leases” has the meaning set forth in the Security Instrument.

“Lien” means any mortgage, deed of trust, deed to secure debt, pledge (including, without limitation, disclosed, undisclosed, possessory and non-possessory), security interest, hypothecation, assignment, statutory trust, deemed trust, privilege, lien, charge, bailment or other similar encumbrance, whether statutory, based on common law, contract or otherwise, and including any option or agreement to give any of the foregoing, any filing of or agreement to give any financing statement under the Uniform Commercial Code (or any equivalent or successor statute) of any jurisdiction to evidence any of the foregoing, any conditional sale or other title retention agreement, any reservation of ownership or any lease in the nature thereof. 

“Liquid Assets” means, with respect to any Person, any of the following assets owned by such Person, but only to the extent located in the United States (e.g., on deposit in a bank located in the United States): (a) cash, determined in accordance with GAAP (which may include up to a maximum of Twenty Million Dollars ($20,000,000) (the “Restricted Cash Limitation”) of cash that is treated as “restricted” under GAAP), (b) cash equivalents, (c) certificates of deposit with a

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term of six (6) months or less issued by a bank or trust company which is organized under the laws of the United States of America or any state  whose long-term debt is rated “A-3” or higher, “A–” or higher or “A–” or higher according to Moody’s, S&P or Fitch Ratings (or such similar equivalent rating by at least one “nationally recognized statistical rating organization” (as defined in Rule 436 under the Securities Act)), respectively, (d) readily marketable direct full faith and credit obligations of the United States of America with a term of six (6) months or less and (e) any undrawn amounts available under any credit facility so long as no default or failure of any borrowing condition then exists under such credit facility; provided however, amounts in the Disbursement Account shall not be included as Liquid Assets.

“Major Contractor” means any General Contractor or Technology Engineer or any other contractor, subcontractor, architect, engineer or other counterparty under a Material Construction Contract.

 “Material Change Order” means any Change Order that (a) constitutes a material change in the architectural or structural design of any of the Improvements, (b) would result in an increase of construction costs (together with all related costs) in excess of $1,000,000 for any single Change Order (together with any other Change Orders related thereto), (c) adversely affects or is reasonably likely to adversely affect in any material respect a structural element or building system, or materially and adversely affects the overall efficiency of operating systems of the Improvements, (d) is materially inconsistent with the requirements of any Material Construction Contract or would give any counterparty under any such Material Construction Contract the right to terminate, rescind or modify the same or (e) could reasonably be expected to adversely affect the Lien or priority of the Lien of the Security Instrument.

“Material Construction Contract” means, with respect to any Project, any contract or agreement with (a) the General Contractor, Architect or Technology Engineer for such Project or (b) any other material contractor, subcontractor, engineer, architect contract or other design professional if (solely with respect to this clause (b)) the aggregate contract price or other amount payable by the Obligor Parties or their Affiliates under such contract or agreement is greater than or equal to Five Million Dollars ($5,000,000).

“Maturity Date” means the earlier to occur of (a) the Scheduled Maturity Date and (b) any earlier date on which the Obligations may become due upon an acceleration of the Obligations pursuant to this Indenture or otherwise.

“Maximum Aggregate LTV” means, as of any date of determination, an Aggregate LTV of not more than fifty-five percent (55%).

“Maximum Legal Rate” shall mean, with respect to any Note, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by such Note and as provided for herein or the other Note Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of such Note.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

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“Net Liquidation Proceeds After Debt Service” means, following any Permitted Senior Facility Closing, with respect to any applicable Liquidation Event, all amounts paid to or received by or on behalf of the applicable PropCo in connection with such Liquidation Event, including, without limitation, proceeds of any sale, refinancing or other disposition or liquidation, less: (a) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the Trustee’s, Holders’ and/or the applicable Senior Facility Lender’s reasonable out-of-pocket costs and expenses incurred in connection with the recovery thereof; (b) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the reasonable out-of-pocket costs and expenses incurred by the applicable PropCo in connection with the Restoration of the applicable Property made in accordance with the applicable Senior Facility Documents; (c) in the event of a Liquidation Event consisting of a Casualty or Condemnation or a Transfer, amounts required or permitted to be deducted therefrom and amounts paid pursuant to the applicable Senior Facility Documents to such Senior Facility Lender; (d) in the event of a foreclosure sale, disposition or Transfer of the applicable Property in connection with realization thereon following a Senior Facility Default, reasonable out-of-pocket costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions); (e) in the event of a foreclosure sale, the costs and expenses reimbursable or payable to the applicable Senior Facility Lender under the applicable Senior Facility Documents; and (f) in the case of a refinancing of such Senior Facility, the reasonable out-of-pocket costs and expenses (including attorneys’ fees) of such refinancing.

“Net Proceeds” means, collectively, (a) Net Insurance Proceeds and (b) Net Condemnation Proceeds.

“Note Custodian” means the Trustee when serving as custodian for the Depositary with respect to the Global Notes, or any successor entity thereto.

“Note Documents” means this Indenture, the Notes,  the Note Guaranty, the Security Instrument, the Pledge Agreement, the Assignment of Contracts and the Environmental Indemnity Agreement

“Note Guaranty” means the Guaranty of the Obligations by Guarantor pursuant to Article XI.

“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of the Effective Date, by and among the Issuer and the Holders, as the same may be amended, modified, restated or supplemented from time to time.

“Obligations” means the obligations of the Issuer and the Guarantor under this Indenture, the Notes, the Note Guaranty and the other Note Documents to (a) pay (i) the Aggregate Principal Amount (including, for the avoidance of doubt, all PIK Amounts), together with the Applicable Premium, as applicable, thereon, (ii) all interest accruing on the Aggregate Principal Amount in accordance with the Note Documents when the same shall be due and payable and (iii) all other amounts due or to become due under or in connection with this Indenture, the Notes, the Note Guaranty and the other Note Documents and (b) perform all other obligations of the Issuer and the Guarantor under this Indenture, the Notes, the Note Guaranty and the other Note Documents, in each case according to the respective terms hereof and thereof.

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“Obligor Parties” means, collectively, Issuer and the PropCos.

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice-President of such Person.

“Officer’s Certificate” means a certificate signed by an Officer of the Issuer or Guarantor, as applicable.

“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or any Subsidiary of the Issuer.

“Outstanding Principal Amount” means, with respect to any Note, as of any date of determination, the then unpaid Principal Amount of such Note (inclusive of, for the avoidance of doubt, any PIK Amount).

“Participant” means, with respect to DTC, a Person who has an account with DTC.

“Paying Agent” means any Person authorized by the Issuer to pay the principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance, covenant defeasance or similar payment with respect to, any Notes on behalf of the Issuer.

“Permitted Encumbrances” means (a) with respect to any Property, (i) Liens securing real estate taxes or assessments for such Property that are not yet due or payable,  (ii) Liens securing obligations under any Permitted Senior Facility with respect to such Property that are incurred in accordance with the applicable terms and conditions of this Indenture,  (iii) Liens created by specifically identified written documents that are recorded in the land records of the county or other applicable jurisdiction in which such Property is located and listed as exceptions on Schedule B of the Trustee’s Title Policy relating to such Property; (iv) Liens permitted in accordance with Schedule III that have been bonded in accordance with the applicable provisions of this Indenture;  (iv) any Leases affecting such Property entered into by the applicable PropCo in accordance with the terms and conditions of the Note Documents; and (v) Liens granted in favor of the Trustee pursuant to the Note Documents; and (b) with respect to any Collateral, Liens granted in favor of the Trustee pursuant to the Note Documents.

“Person” means any natural person, corporation, limited liability company,  trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.

“Personal Property” has the meaning set forth in the Security Instrument.

“Pledge Agreement” means (a) that certain Pledge and Security Agreement, dated as of the Effective Date, by Issuer in favor of Trustee, as the same may be amended, modified, restated or supplemented from time to time in accordance with the Note Documents and (b) any Additional Pledge Agreement.

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“Pledged Equity Interests” means (a) the Equity Interests in the PropCos pledged pursuant to the Pledge Agreement and (b) the Equity Interests pledged pursuant to any Additional Pledge Agreement.

“Project Expenses” means all costs and expenses of performing a Project and achieving Project Completion with respect thereto.

“Project Plans and Specifications” means the plans and specifications for a Project to be prepared by a Project Architect and approved by the Trustee, at the direction of the Required Holders, in accordance with this Indenture, as the same may be modified from time to time in accordance with this Indenture.

“Properties” means, collectively, (a) the Obion Property, (b) the Mt. Vernon Property (until the occurrence of a Mt. Vernon Release/Substitution with respect to the Mt. Vernon Property) and (c) any Additional Property.

“Property Documents” means, collectively, all (a) Leases and (b) reciprocal easement, operating and/or development agreements, easements, rights of way, covenants, conditions, restrictions, declarations and similar agreements, and (c) ground leases, in each case, from time to time and whether or not the same may be of record.

“Qualified Additional Property” means a parcel (or contiguous parcels) of real property: (a) that satisfies the Additional Property Conditions; (b) as to which the Issuer or  PropCo intends, as of the date of the applicable Additional Property Notice and the applicable Additional Property Date, to undertake and complete a Project prior to February 9, 2025; and (c) that otherwise satisfies the then current underwriting criteria of the Holders.

“Qualifying Appraisal” means an appraisal, dated not more than one hundred twenty (120) days prior to the required date of delivery thereof, which shall be prepared by (a) Natwick Appraisals or (b) another nationally or regionally recognized first-class appraisal firm selected or approved by the Trustee, at the direction of the Required Holders, with substantially comparable experience to Natwick Appraisals in appraising properties that are similar in all material respects to the Property being appraised and used as ethanol production or refining facilities.

“Registrar” means any Person authorized by the Issuer to maintain the Note Register.

“Regulation S” means Regulation S under the Securities Act.

“Rents” has the meaning set forth in the Security Instrument.

“Requirements of Environmental Law” has the meaning set forth in the Environmental Indemnity Agreement.

“Required Holders” means (a) Arranger-Managed Holders holding five percent (5.0%) or more of the Aggregate Outstanding Principal Amount and (b) if Arranger-Managed Holders do not hold five percent (5.0%) or more of the Aggregate Outstanding Principal Amount, then Holders (which can include Arranger-Managed Holders) of fifty and one-tenth of one percent (50.1%) or more of the Aggregate Outstanding Principal Amount.

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“Resale Restriction Termination Date” has the meaning set forth in the Restricted Notes Legend.

“Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee within the Corporate Trust Office (or any successor unit or department including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer, or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for administration of this Indenture. 

“Restricted Cash Limitation” has the meaning set forth in the definition of Liquid Assets.

“Restricted Notes Legend”  means the legend identified as such in Exhibit A hereto.

“Restricted Payment” is defined to mean any of the following:

(d)any Investment by the Issuer or any of its Subsidiaries in any Person.

“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, and its successors.

“Scheduled Maturity Date” means February 9, 2026.

“SEC” means the Securities and Exchange Commission and any successor thereto.

“Securities Act” means the Securities Act of 1933, as amended.

“Security Instrument” means, individually and/or collectively, as the context may require, (a) that certain (i) First Priority Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing by Mt. Vernon PropCo with respect to the Mt. Vernon Property in favor of Trustee and (i) First Priority Deed of Trust, Security Agreement, Assignment of Leases and Rents

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and Fixture Filing by Obion PropCo with respect to the Obion Property in favor of Trustee, each of which is dated as of the Effective Date and (b) any Additional Security Instrument, in each case, as the same may be amended, modified, restated or supplemented from time to time in accordance with the Note Documents.

“Senior Facility Default” means any default under a Permitted Senior Facility that continues beyond any applicable notice and/or grace periods therein.

“Special Purpose Entity” shall mean a limited liability company, limited partnership or corporation, the organization documents of which have separateness covenants, restrictions and limitations that such entity shall: (a) own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by this Indenture and transactions specifically contemplated by any Permitted Senior Facility; (b) not incur any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (i) with respect to the Obligations and the obligations under any Permitted Senior Facility, and (ii) as otherwise permitted under this Indenture; (c) not make any loans or advances to any of its Affiliates or any third party and shall not acquire obligations or securities of any of its Affiliates, in each case other than in the ordinary course of business,  other than contributions to the PropCos to pay Approved Project Expenses, and other than the Equity Interests in the PropCos; (d) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (e) comply with the provisions of its governing documents; (f) do all things necessary to observe organizational formalities and to preserve its existence, and not amend, modify, waive provisions of or otherwise change its governing documents; (g) maintain all of its books, records and bank accounts separate from those of its Affiliates; (h) be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other; (i) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided,  however, that the foregoing shall not require its direct or indirect owners to make contributions of equity; (j) not engage in or suffer any Change of Control, dissolution, winding up, liquidation, consolidation or merger in whole or in part or convey or transfer all or substantially all of its properties and assets to any Person (except to the extent permitted under this Indenture); (k) not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others; (l) maintain its properties, assets and accounts separate from those of any Affiliate or any other Person; (m) not hold itself out to be responsible for the debts or obligations of any other Person; (n) not enter into any transaction with any of its Affiliates except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s-length transaction and except as expressly permitted by this Indenture and/or any Permitted Senior Facility; and (o) not pledge its assets to secure any obligations of any other Person.

“Subsidiary” means, with respect to any Person, (a) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or other similar entity) of which more than 50% of the total voting power of shares of Equity Interests entitled to vote in the election of directors, managers or trustees thereof, as of any applicable time of

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determination, owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (if any) or any combination thereof, and (b) any partnership, joint venture, limited liability company or other similar entity of which (i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (if any) or any combination thereof, whether in the form of membership, general, special or limited partnership or otherwise, and (y) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).

“Transaction” means, collectively, the transactions contemplated by the Note Purchase Agreement and the Note Documents.

“Transfer Restricted Notes” means Notes that bear or are required to bear the Restricted Notes Legend.

“Treasury Rate” means with respect to the Notes, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two (2) Business Days prior to such Redemption Date (or, if such statistical release is no longer published, any successor publication published by the Board of Governors of the Federal Reserve System, or such other publication or statistical guide as the Trustee, at the direction of the Required Holders, may reasonably select.

“Trustee” has the meaning set forth in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and, thereafter, means the successor.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other applicable jurisdiction.

SECTION 1.2     Other Definitions

.



SECTION 1.3     Trust Indenture Act Term

.

The following TIA term used in this Indenture has the following meaning:

“obligor” on the Notes and the Note Guaranty means the Issuer and the Guarantor, respectively, and any successor obligor upon the Notes and the Note Guaranty, respectively.

SECTION 1.4     Rules of Construction

.

Unless the context otherwise requires:

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ARTICLE II

THE NOTES

SECTION 2.1   Form and Dating; Terms

.

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Except as set forth in Section 2.6, the Global Notes may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor of the Depositary or its nominee.

SECTION 2.2     Execution and Authentication

.

SECTION 2.3     Registrar; Paying Agent

.

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SECTION 2.4   Paying Agent to Hold Money in Trust

.

The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any Default with respect to such payment. While any such Default exists, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all funds held by it to the Trustee. Upon payment over to the Trustee of any such funds, the Paying Agent (unless it is the Issuer or a Subsidiary thereof) shall have no further liability for such funds. If the Issuer or a Subsidiary thereof acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all funds held by it as Paying Agent. Notwithstanding anything to the contrary herein, upon the occurrence of any event specified in clause (13) of the first paragraph of Section 6.1, the Trustee shall serve as Paying Agent for the Notes.

SECTION 2.5     Holder Lists

.

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least five  (5) Business Days before each  Interest Payment  Date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, including the aggregate Principal Amount of the Notes held by each such Holder.

SECTION 2.6     Book-Entry Provisions for Global Securities

.

Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee, from giving effect to any written

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certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.

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SECTION 2.7     Replacement Notes

.

If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met.

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Each and every such replacement Note shall be an obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

SECTION 2.8     Outstanding Notes

.

SECTION 2.9     Treasury Notes

.

In determining whether the Holders of the required Aggregate Principal Amount have concurred with or given any direction, waiver or consent, Notes owned by the Issuer or by any Affiliate of the Issuer shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes shown on the Notes Register as being so owned shall be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity.

SECTION 2.10     Temporary Notes

.

Until Certificated Notes are ready for delivery, the Issuer may prepare and the Trustee shall, upon receipt of an Authentication Order, authenticate temporary Notes. Temporary Notes shall be substantially in the form of Certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate Certificated Notes in exchange for temporary Notes.

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.

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SECTION 2.11     Cancellation

.

The Issuer at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder or which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee upon the receipt of a cancellation request from the Issuer signed by an Officer. All Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation if surrendered to any Person other than the Trustee, shall be delivered to the Trustee. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. Subject to Section 2.7, the Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled Notes held by the Trustee shall be cancelled and disposed of in accordance with its customary practice, and certification of their cancellation delivered to the Issuer upon written request.

SECTION 2.12     Default Interest

.

If an Event of Default occurs, and for so long as such Event of Default continues to exist, the Issuer shall pay, to the Persons who are Holders of the Notes on the applicable dates, interest on the Notes at the Default Rate and otherwise in accordance with the applicable provisions of the Notes and Section 4.1.

SECTION 2.13     CUSIP Number

.

The Issuer in issuing or otherwise dealing with the Notes may use a “CUSIP” and/or ISIN or other similar number, and if it does so, the Issuer may use the CUSIP and/or ISIN or other similar number in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP and/or ISIN or other similar number printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and/or ISIN or other similar number.

SECTION 2.14     Special Transfer Provisions

.

Unless and until a Transfer Restricted Note is transferred or exchanged pursuant to an exemption under the Securities Act or under an effective registration statement under the Securities Act the following provisions shall apply:

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ARTICLE III

REDEMPTION AND PREPAYMENT

SECTION 3.1     Voluntary Redemption; Applicable Premium

.

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SECTION 3.2     Mandatory Redemptions

.





SECTION 3.3     Notes Redeemed in Part

.

In the case of any Certificated Notes, upon surrender and cancellation of any such Note that is redeemed in part, the Issuer shall execute and, upon its receipt of an Authentication Order, the Trustee shall authenticate for the Holder at the expense of the Issuer, a new Note equal in Principal Amount to the unredeemed portion of the Note so surrendered and cancelled.

ARTICLE IV

COVENANTS

SECTION 4.1     Payment of Notes

.

SECTION 4.2     Use of Proceeds; Disbursement Account

.

SECTION 4.3     Projects

.

SECTION 4.4     Limitation on Incurrence of Indebtedness

.  

SECTION 4.5     Intentionally Omitted

.

SECTION 4.6     Financial Statements and Reports

.  The Issuer and the Guarantor (as applicable) shall deliver to the Trustee the following information, statements, certification and other documentation on each respective date therefor set forth in this Section 4.5:

annually, as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year, the consolidated balance sheet and related consolidated statements of earnings and cash flows, including statements of profit and loss, net operating income, net cash flow, gross income and operating expenses for the Propcos on a combined basis and a per Property basis (collectively, the “Property Metrics”), which statements shall set forth in comparative form the corresponding figures of the previous Fiscal Year, all in reasonable detail, and shall be prepared in conformity with GAAP, applied on a basis consistent with the Obligor Parties’ and the Guarantor’s current practices (except as otherwise stated therein or in the notes thereto).

annually, as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year, the  consolidated and consolidating balance sheet and related consolidated and consolidating statements of earnings, equity and cash flows of the Guarantor as of the end of and for such Fiscal Year,  which statements shall set forth in comparative form the corresponding figures of the previous Fiscal Year, all in reasonable detail, and shall be prepared in conformity with GAAP, applied on a basis consistent with that of previous Fiscal Years (except as otherwise stated therein or in the notes thereto).  The Guarantor’s financial statements shall be audited by (and accompanied by a report or opinion of)  an independent certified public accounting firm approved by the Guarantor’s Board of Directors, and such report or opinion shall state that such financial statements present fairly the consolidated (and consolidating) financial condition and results of operations and cash flows of the Guarantor in accordance with GAAP consistently applied (except for any changes with which such accounting firm concurs) and that the examination of such accounting firm in connection with such financial statements has been made in accordance with generally accepted auditing standards;

quarterly, as soon as practicable and in any event within forty-five (45) days after the end of each fiscal quarter of the Obligor Parties and Guarantor, the consolidated balance sheet and related consolidated statements of earnings, cash flows and profit and loss of the Obligor Parties and the Guarantor as of the end of and for such fiscal quarter,  which statements shall include quarterly and year-to-date operating statements setting forth the Property Metrics for each such period and setting forth, in each case in comparative form, the corresponding figures of the

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previous Fiscal Year and fiscal quarter, all in reasonable detail, which statements shall be prepared in conformity with GAAP, applied on a basis consistent with that of previous fiscal quarter (except as otherwise stated therein or in the notes thereto).

for the partial Fiscal Year commencing on the Effective Date, and thereafter annually for each subsequent Fiscal Year, as soon as practicable and in any event on the Effective Date (for such partial Fiscal Year) and prior to the commencement of each such subsequent Fiscal Year, an annual operating budget for the Obligor Parties (which shall, for the avoidance of doubt, be limited to the Properties and shall not be required to cover any other properties or operations of Subsidiaries of Guarantor other than the Obligor Parties) in form and substance reasonably acceptable to Trustee, at the direction of the Required Holders (each, an “Annual Budget”);

on each date on which the financial statements required pursuant to the foregoing Sections 4.6(a) through 4.6(ee) are required to be delivered, an Officer’s Certificate of the Issuer and Guarantor in the form of Exhibit E (a “Compliance Certificate”);

within three (3) Business Days following any Obligor Party or any Officer thereof becoming aware of the existence of a Default or Event of Default or any other default under any documents evidencing and/or securing any Indebtedness of any Obligor Party, a written notice specifying the nature and period of existence of such Default, Event of Default or other default (as applicable) and what action the Obligor Parties are taking or propose to take with respect thereto;

intentionally omitted;

promptly following any Obligor Party or any Officer thereof becoming aware of the occurrence of (i) any surrender of assets of any Obligor Party in satisfaction of any Indebtedness, (ii) the dissolution of any operating partnership or real estate ownership partnership of any Obligor Party, (iii) the termination or expiration of any Property Document, or (iv) (A) the commencement of any material litigation, including any arbitration or mediation, and of any proceedings before any Governmental Authority with respect to any Property or Guarantor or any Obligor Party or their respective businesses or (B) the passage or implementation of (or the proposed passage or implementation of) any order, ruling, statute or other law or regulation of any Governmental Authority, any of the foregoing which could materially and adversely affect the business, properties, prospects or financial condition of any Obligor Party taken as a whole (including any such action commenced by a  counterclaim), written notice specifying the nature thereof and what action the Obligor Parties are taking or propose to take with respect thereto;

such annual and quarterly reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and reports to be so provided at the times specified for the filing of such information, documents and reports under such Sections of the parent of the Issuer; and.

such other information as to the business and properties of the Obligor Parties, including consolidated financial statements of the Obligor Parties and Guarantor, and other financial statements and/or reports filed with any Governmental Authority, as the Trustee or any Holder may from time to time reasonably request.

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Inspection

.  The Trustee, , at the direction of the Required Holders, shall have the right from time to time, upon three (3) business days’ notice (or, in the event of an emergency that consists of an imminent threat to life or an imminent and material threat to the Property, such advance notice as is reasonable considering the circumstances) to the Issuer, (a) but not more than once per calendar year (so long as no Event of Default exists) to visit and inspect, at the Obligor Parties’ expense, any Property or any of the other properties of any Obligor Party, in each case at such  times as the Trustee or such Holder may reasonably request; provided, that if an Event of Default exists, there shall be no limit to such right of the Trustee, to visit and inspect the Properties.  The foregoing visitation and inspection rights shall extend to any property not owned by an Obligor Party but at which any Collateral may be located and shall include the right to examine, and discuss with the Obligor Parties’ respective Officers and certified public accountants in coordination with the Issuer, any of the Obligor Parties’ respective affairs, finances and accounts, and (b) to contact such third parties, in coordination with the Issuer, doing business with any Obligor Party, and to engage in such other auditing procedures, as Trustee, at the direction of the Required Holders, deems reasonable to ensure the validity of the Trustee’s Liens and security interests on and in the Collateral and/or the accuracy of the Obligor Parties’ respective representations, warranties and certifications under the Note Documents.



SECTION 4.8     To Pay and Perform Obligations

.  The Issuer shall punctually pay or cause to be paid the principal (if applicable) and interest, together with any Applicable Premium and shall pay and perform or cause to be paid and performed all other Obligations, in each case, as and when required in accordance with the Note Documents.

SECTION 4.9     Intentionally Omitted.

SECTION 4.10     Books

and Records.  Guarantor, on behalf of the Issuer and the PropCos, shall keep proper books of record and account in accordance with GAAP, including without limitation, maintaining the audited annual consolidated financial statements of Guarantor, the Property Metrics for each Property, the Annual Budget and all other financial statements required to be prepared or maintained in accordance with Section 4.6.

SECTION 4.11     Payment of Taxes; Corporate Existence; Maintenance of Properties

.  The Issuer shall:

SECTION 4.12     Compliance with Laws and Property Documents

.  The Issuer shall (and shall cause each PropCo to) comply in all material respects at all times with all Applicable

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Laws and Property Documents affecting or relating or pertaining in any way to or binding on any Property and/or the use, operation and/or the maintenance thereof, and shall obtain and continuously maintain any and all material licenses, permits, franchises or other governmental authorizations necessary in connection with the ownership and/or operation of each Property or to the conduct of its business, and shall furnish to the Trustee, on request, proof of such compliance.  If any Obligor Party receives a notice or claim from any Governmental Authority that any Property, or any use, activity, operation or maintenance thereof or thereon, is not in compliance with any such law, other governmental standard or Property Document, which could have a material adverse effect, such Obligor Party shall promptly furnish a copy of such notice or claim to the Trustee.  The Issuer shall not (and shall not permit any PropCo to) use or permit the use of any Property, or any part thereof, for any illegal purpose.  The Issuer shall not (and shall not permit any PropCo to), without the prior written consent of the Trustee, at the direction of the Required Holders, which shall not be unreasonably withheld or delayed, enter into, materially modify or terminate any Property Document to the extent that (a) such Property Document consists of a Lease (including, without limitation, any ground lease), (b) except in the event of any such termination, (i) the counterparty under any such Property Document is an Affiliate of Guarantor or any Obligor Party, (ii) such Property Document imposes any material monetary obligations on any Obligor Party and is not expressly subordinate to the Lien of the Security Instrument or freely terminable upon thirty (30) days’ notice or less without the payment of a fee or penalty or (c) such action affects any zoning classification of such Property or could reasonably be expected to adversely affect access to and from or the marketability or utility of such Property for its current use.  The Issuer shall cause each PropCo to observe and perform all of its obligations under any Property Document, and to enforce the obligations of each counterparty under a Property Document in a commercially reasonable manner. 

SECTION 4.13     Litigation

.  So long as any Notes remain outstanding, the Issuer shall (and shall cause each PropCo to) promptly furnish to Trustee written notice of any material litigation adversely affecting or relating to Guarantor, any Obligor Party or any Property.

SECTION 4.14     Loan to Value

.  The Issuer shall at all times cause the Aggregate LTV to not exceed the Maximum Aggregate LTV and, if the Trustee, at the direction of the Required Holders, or any Obligor Party shall determine that the Aggregate LTV exceeds the Maximum Aggregate LTV (an “Excess LTV Event”), the Trustee or such Obligor Party shall promptly notify the other Party of such Excess LTV Event (an “Excess LTV Notice”).  If, within five (5) Business Days following the delivery of an Excess LTV Notice, the Issuer: (a)  partially redeems the Notes (without the payment of any Applicable Premium) and/or causes any PropCo to pay down any Permitted Senior Facility, in each case, in an amount that causes the Aggregate LTV to no longer exceed the Maximum Aggregate LTV; or (b)  (i) delivers an Additional Property Notice with respect to an Additional Property in accordance with (and subject to) Section 5.2, together with a Qualifying Appraisal with respect to the Additional Property and each Property, in each case dated not earlier than twelve (12) months prior to the applicable date, showing an appraised value for such Additional Property which (if added to the aggregate appraised value of the Properties pursuant to such Qualifying Appraisals) would result in an Aggregate LTV that is less than or equal to the Maximum Aggregate LTV, (ii) within sixty (60) days thereafter, satisfies

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each of the Additional Property Requirements with respect to such Additional Property Notice and (iii) following the addition of such Additional Property to the Collateral, the Aggregate LTV no longer exceeds the Maximum Aggregate LTV, then such Excess LTV Event shall be deemed to have been cured and shall not be an Event of Default. If the Issuer fails to timely satisfy the requirements of either clause (a) or clause (b) above, then such failure shall constitute an Event of Default without any further notice or cure.

SECTION 4.15     Intentionally Omitted

.     

SECTION 4.16     Intentionally Omitted

. 

SECTION 4.17     Restricted Payments; Equity Collateral; Pledged Equity Interests

.  The Issuer shall not, directly or indirectly, make, commit or incur any liability to make any Restricted Payment, or make any advances or loans to any member or other direct or indirect equity interest holder of the Issuer, unless (in each case) immediately after giving effect to any such action, neither a Default nor an Event of Default shall exist.  

SECTION 4.18     Transactions with Affiliates.  Except with respect to any arms’ length written agreements with Affiliates of the Issuer or Guarantor in effect as of the Effective Date, the Issuer shall not (and shall not permit any PropCo to) engage in any transaction with any of its or their Affiliates on terms that are more favorable to the applicable Affiliate than would have been obtainable by a third party in an arm’s length transaction in the ordinary course of such Person’s business.

SECTION 4.19     Change of Control; Encumbrances on and Transfers of Collateral.  The Issuer acknowledges that, in agreeing to enter into the Transaction, the Holders have examined and relied (and shall continue to rely) on the creditworthiness and experience of Guarantor and the Obligor Parties and the experience, competence and reputation of their respective officers and equity owners with respect to the operation of each Property and Holders shall continue to rely on the Obligor Parties’ ownership of the Collateral and on their continuing to have Officers, equity owners and employees of the same experience, competence and capacity as exist as on the Effective Date, as a means of maintaining the value of the Collateral as security for repayment of the Obligations.  The Issuer further acknowledges that Holders have a valid interest in maintaining the value of the Collateral to ensure that, should the Issuer default in the payment or performance the Obligations, the Trustee can recover the Obligations for the benefit of Holders by a sale of the Collateral.

(a)Except for any Permitted Encumbrances, the Issuer shall not (and shall not permit any PropCo to) create, incur, assume or permit to exist any Lien on any of the Collateral or any

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interest therein.  Notwithstanding the foregoing, any PropCo may sell or otherwise dispose of, free from the lien of the Security Instrument, furniture, furnishings, equipment, tools, appliances, machinery, fixtures, appurtenances and other personal property subject to the lien of the Security Instrument, in each case which have become worn out, undesirable or obsolete or are no longer used in the ordinary course of business operations of the applicable Property provided that such disposal shall not reduce the fair market value of such Property or of the Collateral of a whole.

(b)The Issuer shall not (and shall not permit any PropCo to), in each case without the prior written consent of the Trustee, at the direction of the Required Holders, sell, convey, alienate, mortgage, encumber, pledge or otherwise Transfer (other than pursuant to any Permitted Encumbrance), whether voluntarily, involuntarily or by operation of law or otherwise (each of the foregoing, a “Transfer”) the Collateral or any part thereof or interest therein or possession thereof, or suffer or permit the Collateral or any part thereof or interest therein or possession thereof to be Transferred, in each case excluding (i) dispositions of Personal Property at any Property in the ordinary course of business so long as such Personal Property (as applicable) are replaced with property of comparable value and utility, except to the extent that (A) any of the same is no longer necessary in connection with the operation of such Property and (B) the same would not reasonably be expected to result in a reduction of the Fair Market Value of such Property and (ii) for the avoidance of doubt, sales of inventory and the products of the Obligor Parties’  operations at such Property in the ordinary course of business.

(c)A Transfer within the meaning of this Section 4.19 shall be deemed to include, without limitation:  (i) an installment sales agreement wherein any Obligor Party agrees to sell the Collateral or any part thereof for a price to be paid in installments, (ii) an agreement by any Obligor Party leasing all or a substantial part of the Collateral or any Property, or a Transfer of, or the grant of a security interest in, any Obligor Party’s right, title and interest in and to any Leases or Rents related to the Collateral or any further interest, (iii)  any assignment, pledge or Transfer, whether voluntarily or involuntarily, by operation of law or otherwise, of or affecting any direct or indirect interest in any Obligor Party, whether through one or more intermediaries and whether at one time or in a series of related transactions; (iv) the change, removal, resignation or addition of a general partner, manager or managing member of an Obligor Party, (v) any consolidation or merger with respect to any Obligor Party or any sale by any Obligor Party of all or substantially all of its assets or properties and (vi) any Transfer or change in ownership or change in control, of any direct or indirect interest in any Obligor Party, whether through one or more intermediaries and whether at one time or in a series of related transactions.  Notwithstanding anything to the contrary herein, no Transfers that would otherwise be permitted in accordance with the express provisions hereof shall be permitted if the same would constitute or result in a violation of OFAC, the Trustee’s or any Holder’s obligations under the Patriot Act, or any similar compliance obligations as might arise or ensue in connection therewith. 

(d)Any Transfer made in violation of this Section 4.19 shall constitute an Event of Default and, at the option of the Trustee and, at the direction of the Required Holders, such Transfer shall be null and void and of no force and effect. Neither the Trustee nor any Holder shall be required to demonstrate any actual impairment of the security provided by the Collateral Documents or any increased risk of default under the Note Documents in order to establish the existence of an Event of Default arising from any violation of any of the terms and conditions of this Section 4.19. 

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(e)The consent to any Transfer or any other action described in this Section 4.19 granted by the Trustee, at the direction of the Required Holders, shall not be deemed to be a waiver of the right of the Trustee, at the direction of the Required Holders, to require such consent to any future occurrence of a Transfer or other action described in this Section 4.19. 

(f)The Issuer shall bear and pay or reimburse the Trustee on demand for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements of one (1) external counsel, title search costs and title insurance endorsement premiums) incurred by the Trustee or such Holder in connection with the review, approval and documentation of any such Transfer.  Any consent to or approval of a Transfer hereunder granted by the Trustee, at the direction of the Required Holders, shall not limit the requirement for the Trustee’s consent or approval of or to any future Transfer to the extent that such consent or approval is required hereunder.

SECTION 4.20     Environmental Covenants

.

The Issuer shall cause each PropCo to keep its Property free of asbestos and asbestos-containing materials.

(b)The Issuer shall cause each PropCo and each any other occupant of any Property to use, transport, store, treat, generate, handle, dispose of, or in any other manner deal with any Hazardous Materials on, in, at, about, or from any Property only in compliance with all applicable Requirements of Environmental Law and Environmental Permits; and the Issuer shall not permit any PropCo or any other occupant of any Property to allow any Property to become subject to regulation as a hazardous waste treatment, storage, or disposal facility under any Requirements of Environmental Law or Environmental Permits except in each case in compliance with all applicable Requirements of Environmental Law and Environmental Permits;

(c)The Issuer shall comply with, and shall ensure compliance by each PropCo and all other occupants of each Property with, all Requirements of Environmental Law and Environmental Permits, and shall keep each Property free and clear of any liens imposed pursuant to any Requirements of Environmental Law or Environmental Permits;

(d)The Issuer shall immediately notify the Trustee if the Issuer or any PropCo receives any notice or advice from any Governmental Authority, or third party, regarding any Environmental Claims or that any Hazardous Materials have been released or discharged in, on, onto, under, from or affecting any Property;

(e)promptly upon any Obligor Party’s receipt thereof, the Issuer shall (and shall cause each PropCo to) deliver to the Trustee copies of all notices, orders, and other communications regarding (i) any material enforcement action (actual or threatened) by any Governmental Authority with respect to any Environmental Claim or any Hazardous Materials in, on, under, from or affecting any Property, or relating to any Obligor Party’s property, activities, or operations generally, (2) any Environmental Claims or claims regarding any Hazardous Materials against any Obligor Party, (3) any requirement of any Obligor Party or another occupant of any Property to obtain an Environmental Permit, or (4) any requirement of any Obligor Party or another occupant of any Property to obtain a permit or license with respect to any exploration, mining, extraction,

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storage, transportation, processing or sale of coal, oil, gas or any other minerals on or under such Property;

(f)except as otherwise specifically and previously disclosed to the Trustee in writing, the Issuer shall not (and shall not permit any PropCo to) allow to exist on, under, or about the Land any underground storage tanks.  With respect to any underground storage tanks previously disclosed to Lender in writing, all such underground storage tanks shall be operated and maintained in accordance with all Requirements of Environmental Law;

(g)other than, in each case, with respect to any items disclosed in the Environmental Reports obtained by, or provided to, the Trustee or the Holders on or about the Effective Date or those items disclosed on Schedule IV (the “Disclosed Environmental Matters”), if: (i) the Trustee or any Holder receives any information indicating a reasonable possibility of (A) the presence of Hazardous Materials on, under or at any Property in violation of Requirements of Environmental Law or Environmental Permits, (B) any other material violation of any Environmental Laws or Environmental Permits with respect to any Property, (C) any other condition with respect to any Property that could reasonably be expected to constitute a “recognized environmental condition” pursuant to the then current ASTM Standards (each, an “Adverse Environmental Condition” or (iv) an Event of Default exists, then, in any such case, the Issuer shall (or shall cause the applicable PropCo to) provide at its sole cost and expense, within forty-five (45) days after the written request therefor from the Trustee, at the direction of the Required Holders, a report from a qualified engineering firm or other qualified consultant acceptable to the Trustee, at the direction of the Required Holders, with respect to an investigation and audit of the applicable Property as deemed necessary by such consultant to enable the consultant to report that no such Adverse Environmental Condition exists; and the Issuer shall (or shall cause the applicable PropCo to), if deemed reasonably necessary to further investigate any suspected or likely contamination, provide the Trustee with supplemental reports by acceptable qualified consultants of the analysis which may include surface and subsurface sampling and analysis of soil, sediment, surface water and/or groundwater from the Land, showing that no such Adverse Environmental Condition exists (any such audit and any such supplemental reports, each an “Environmental Report”);   

(h)If any investigation, monitoring, containment, cleanup, removal, restoration or other remedial work of any kind (“Remedial Work”) is required pursuant to any Requirements of Environmental Law, Environmental Permits or with respect to any Environmental Claims, then the Issuer shall (or shall cause the applicable PropCo to), within forty-five (45) days after written demand for performance thereof by the Trustee, at the direction of the Required Holders, or such shorter period as is required under any Applicable Law, order or agreement (including any Property Document), begin and thereafter complete, all such Remedial Work.  All Costs related to any such Remedial Work, shall be paid by the Issuer or the applicable PropCo.  If the Issuer fails to (or fails to cause the applicable PropCo to) promptly commence and thereafter diligent to prosecute to completion) any Remedial Work, then the Trustee, at the direction of the Required Holders, may, but shall not be obligated to, cause such Remedial Work to be commenced and/or completed (as applicable) and all Costs incurred in connection therewith shall become an Environmental Claim hereunder.  Notwithstanding the foregoing, in the event of an emergency, the Issuer shall immediately commence (or cause the applicable PropCo to commence) the necessary Remedial Work and thereafter give immediate notice to the Trustee and seek the consent

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of the Trustee, at the direction of the Required Holders, to the continuation of such Remedial Work; and

(i)Upon three (3) days’ notice to the Issuer, the Trustee, at the direction of the Required Holders, may in its sole discretion enter upon any Property to perform or cause to be performed investigations of such Property for the purpose of identifying any Adverse Environmental Condition.  Any such investigations shall be at the sole cost and expense of the Trustee, unless (i) an Event of Default exists or (ii) the Trustee, at the direction of the Required Holders, had a reasonable basis for believing that at Adverse Environmental Condition may exist at such Property and (ii) such investigation confirms the existence of an Adverse Environmental Condition, in which case the Issuer shall (or shall cause the applicable PropCo to) reimburse the Trustee for the reasonable out-of-pocket costs of such investigation.  Any such investigations may include, but shall not be limited to, the conduct of an Environmental Report including any surface or subsurface sampling and analysis of soil, groundwater, sediment and/or surface water.  The Issuer covenants and agrees that it shall (and shall cause each PropCo to) cooperate fully with the Trustee, the Holders and the Lender Representatives with respect to any such investigations conducted by or on behalf of the Trustee or the Holders.

SECTION 4.21     Creation of Subsidiaries.  The Issuer shall not (and shall not permit any PropCo to) create any Subsidiary without the prior written consent of Trustee, given at the direction of the Required Holders.

SECTION 4.22     Warranty of Title.  The Issuer shall cause each PropCo to warrant and forever defend its Property unto Trustee forever from and against all Persons whomsoever claiming the same or any part thereof or interest therein.

SECTION 4.23     Special Purpose Entity.  Until the Obligations have been satisfied, the Issuer shall be a Special Purpose Entity.

SECTION 4.24    Insurance.

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In the event of foreclosure or other transfer of title to the Collateral in extinguishment in whole or in part of the Indebtedness, all right, title and interest of the Obligor Parties in and to the Policies then in force with respect to the Collateral and all proceeds payable thereunder shall thereupon vest in the Trustee or the other applicable purchaser or transferee in connection therewith.

SECTION 4.25     Restoration.

SECTION 4.26     Care and Use of the Property.





SECTION 4.27     Financial Covenant.  Until all of the Obligations have been satisfied, Guarantor shall maintain Liquid Assets of not less than One Hundred Fifty Million Dollars ($150,000,000) (the “Guarantor Financial Covenant”).

SECTION 4.28     Suits and Other Acts to Protect the Property.

SECTION 4.29     Trustee’s Right to Perform Issuer’s Obligations.  The Issuer agrees that, if the Issuer fails to perform any act or to pay any amounts that the Issuer is required to perform or pay (or to cause any PropCo to perform or pay) under the Note Documents, then  the Trustee, (a) at the direction of the Required Holders, (b) at the cost and expense of the Obligor Parties and (c) in its own name or in the name of any Obligor Party, may (but shall not be obligated to) perform or cause to be performed such act or take such action or pay any such amounts.    

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SECTION 4.30     Liens and Encumbrances.  The Issuer shall not (nor shall it permit any PropCo to), without the prior written consent of Trustee, at the direction of the Required Holders, create, place or suffer or permit to be created or placed, or through any act or failure to act, allow to remain, any mechanics’, materialmen’s or other Lien against or covering any Property, or any part thereof, in each case other than the Permitted Encumbrances and the Lien for ad valorem taxes on any Property not yet delinquent, regardless of whether any such Lien is expressly or otherwise subordinate to the Lien and security interests created by the Security Instrument, and if any such Lien (other than Permitted Encumbrances) shall attach to or arise with respect to any Property, then the Issuer shall (or shall cause the applicable PropCo to) promptly (and in all events within ten (10) Business Days discharge and release the same to the satisfaction of the Trustee, at the direction of the Required Holders).  Each PropCo shall own all parts of its Property and, except as expressly approved in writing by Trustee, at the direction of the Required Holders, shall not acquire any fixtures, equipment or other property forming a part of such Property pursuant to a lease, license, title retention document or other similar agreement.

SECTION 4.31     Stay, Extension and Usury Laws.

The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

SECTION 4.32     Estoppel Statements.

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SECTION 4.33     Further Assurances.  The Issuer shall, at Issuer’s sole cost and expense:

SECTION 4.34     Qualifying Appraisal.

The Issuer shall deliver to the Trustee a Qualifying Appraisal setting forth the Fair Market Value of the Properties within forty-five (45) days following (i) Project Completion of each Project and (ii) any date on which the Trustee, at the direction of the Required Holders, requests the same if (A) the Trustee, at the direction of the Required Holders, determines that a material adverse event has occurred with respect to a Property and notifies the Issuer of such determination in writing or (B) an Event of Default then exists; provided,  however, that, solely with respect to the foregoing clause (ii)(A), the Trustee shall not be permitted to make such a request for a Qualifying Appraisal (1) prior to the one (1) year anniversary of the Effective Date or (2) more than three (3) times for any individual Property during the term of the Notes.

ARTICLE V

PERMITTED SENIOR FACILITY; PROPERTY RELEASES AND SUBSTITUTIONS

SECTION 5.1     Permitted Senior Facility

.

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SECTION 5.2     Additional Properties

; Release and Substitution of Properties.

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ARTICLE VI

DEFAULTS AND REMEDIES

SECTION 6.1      Events of Default

.

Each of the following shall constitute an “Event of Default”:

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and the applicable order or decree remains unstayed and in effect for thirty (30) days;

SECTION 6.2     Acceleration

.

SECTION 6.3     Other Remedies

.

SECTION 6.4     Control by Majority

.

The Required Holders may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, (a) the Trustee may refuse to follow any direction (i) that conflicts with law,  this Indenture or any of the other Note Documents or any Intercreditor Agreement,  (ii) that the Trustee determines may be unduly prejudicial to the rights of other Holders or (iii) that may involve the Trustee in personal liability, and (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

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SECTION 6.5     Limitation on Suits

.

No Holder of any Note shall have any right to institute any proceeding with respect to this Indenture unless:

A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.

SECTION 6.6     Rights of Holders of Notes to Receive Payment

. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of the Principal Amount,  any Applicable Premium and interest on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

SECTION 6.7     Collection Suit by Trustee

. If an Event of Default occurs, without the possession of any of the Notes or the production thereof in any proceeding related thereto, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of the Aggregate Principal Amount,  Applicable Premium and interest remaining unpaid on or with respect to the Notes and interest on overdue principal and such further amount as shall be sufficient to cover all costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee (including without limitation any amounts due to the Trustee pursuant to Section 7.7), its agents and counsel.

SECTION 6.8     Trustee May File Proofs of Claim

. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes, including Guarantor), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or securities or other property payable or deliverable upon the conversion or exchange of the Notes or on any such claims

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and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.7. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.7 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

SECTION 6.9     Priorities

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SECTION 6.10     Undertaking for Costs.  In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.10 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by Holders of more than 10% of the Aggregate Principal Amount of the then outstanding Notes.

ARTICLE VII

TRUSTEE

SECTION 7.1     Duties of Trustee

.

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SECTION 7.2     Rights of Trustee

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SECTION 7.3     Individual Rights of Trustee.

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.

SECTION 7.4     Trustee’s Disclaimer

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein, any statement in the Notes, or any statement or recital in any document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication on the Notes. The Trustee shall not be responsible for calculating the Applicable Premium or determining whether such amounts are due.

SECTION 7.5     Notice of Defaults

If a Default or an Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs, or if discovered after such 90 day period, promptly after the Trustee learns of such Default or Event of Default (unless such Default or Event of Default shall have been cured or waived). Except in the case of a Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interests of the Holders.

The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default (other than a Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes)unless a Responsible Officer of the Trustee has actual knowledge thereof or shall have received written notice thereof at its address set forth in Section 12.2 from the Issuer, Guarantor or Holders of 25% in aggregate principal amount of the then outstanding Notes specifying the occurrence and nature thereof and stating that such notice is a notice of default.

SECTION 7.6     [Intentionally Omitted]

SECTION 7.7     Compensation and Indemnity

The Issuer shall pay to the Trustee from time to time compensation as shall be agreed to in writing by the Issuer and the Trustee for its acceptance of this Indenture and services hereunder (it being hereby agreed that the compensation set forth in any fee letter between the Issuer and the Trustee shall be deemed to be reasonable). The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made

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by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements, fees and expenses of the Trustee’s agents and counsel.

The Issuer and the Guarantor, jointly and severally, shall indemnify the Trustee (which for purposes of this Section 7.7 shall include its officers, directors, agents and employees) against any and all claims, damages, losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuer (including this Section 7.7) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense may be attributable to its negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of one such counsel. The Issuer and the Guarantor need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.

The obligations of the Issuer and the Guarantor under this Section 7.7 shall survive the satisfaction and discharge or termination for any reason of this Indenture, including any termination or rejection hereof under any Bankruptcy Law, or the resignation or removal of the Trustee.

To secure the Issuer’s and the Guarantor’s obligations in this Section 7.7, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, or interest, if any, on particular Notes. Such Lien shall survive the satisfaction and discharge or termination for any reason of this Indenture and the resignation or removal of the Trustee.

In addition, and without prejudice to the rights provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders services after an Event of Default specified in clause (8) of the first paragraph of Section 6.1 occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

“Trustee” for the purposes of this Section 7.7 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided,  however, that the negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.

The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.

SECTION 7.8     Replacement of Trustee

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.8.

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The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:

If the Trustee resigns, is removed or becomes incapable of acting, or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.

If a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee, after written request by any Holder who has been a Holder for at least six (6) months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and the duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under and the Lien provided for in Section 7.7 shall continue for the benefit of the retiring Trustee.

SECTION 7.9     Successor Trustee by Merger, Etc.

Any entity into which the Trustee or any Agent may be merged or converted or with which the Trustee or any Agent may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee or any Agent shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of the Trustee or any Agent, shall be the successor of the Trustee or any Agent hereunder, as applicable, provided such entity shall be otherwise qualified and eligible under this Article VII, to the extent operative, without the execution or filing of any document or further act on the part of any of the parties hereto. In the case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and

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deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

SECTION 7.10     Eligibility; Disqualification

There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust power and that is subject to supervision or examination by federal or state authorities. The Trustee shall at all times have a combined capital surplus of at least  $50.0 million as set forth in its most recent annual report of condition. If at any time the Trustee ceases to be eligible in accordance with the provisions of this Section 7.10, it shall resign immediately in the manner and with the effect specified in this Article VII.

This Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b) including the provision in ‌ ‌‌ ‌§ 310(b)(1); provided that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Issuer or the Guarantor are outstanding if the requirements for exclusion set forth in TIA § 310(b)(1) are met.

SECTION 7.11     Preferential Collection of Claims Against the Issuer

The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.

SECTION 7.12     Trustee’s Application for Instructions from the Issuer

Any application by the Trustee for written instructions from the Issuer may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than twenty (20) Business Days after the date any Officer of the Issuer actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.

SECTION 7.13     Limitation of Liability

In no event shall the Trustee, Paying Agent or Registrar or in any other capacity hereunder, be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee, Paying Agent or Registrar or in any other capacity hereunder, has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. The Trustee, the Paying Agent and the Registrar shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising

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out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or military authority and governmental action. The provisions of this Section 7.13 shall survive satisfaction and discharge or the termination for any reason of this Indenture and the resignation or removal of the Trustee, the Paying Agent or the Registrar.

ARTICLE VIII
CERTAIN INDEMNIFIED MATTERS

Without limiting any term or provision of Article VI, the Issuer indemnifies, defends and holds harmless the Trustee and each Holder from and against all losses, costs, expenses, damages, claims or other obligations (including, without limitation, reasonable attorneys’ fees and court costs) (collectively, “Losses”) incurred or suffered by the Trustee or any such Holder arising out of or in connection with any of the following (collectively, the “Indemnified Matters”):

ARTICLE IX

AMENDMENT, SUPPLEMENT AND WAIVER

SECTION 9.1     Without the Consent of the Holders.

Notwithstanding the provisions of Section 9.2, without the consent of any Holder, the Issuer, the Guarantor and the Trustee may amend or supplement any Note Documents to:

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SECTION 9.2     With the Consent of the Holders

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Except as provided in this Section 9.2, the Note Documents may be amended or supplemented with the consent of Issuer and the Holders of at least a majority in Aggregate Outstanding Principal Amount (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and any existing Default or compliance with any provision of the Note Documents may be waived with the consent of the Holders of at least a majority in Aggregate Outstanding Principal Amount (including consents obtained in connection with purchase of, or tender offer or exchange offer for, the Notes); provided,  however, that without the consent of each Holder of the applicable Notes affected thereby, any such amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):

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Notwithstanding anything to the contrary herein, any amendment or supplement to, or waiver of, the provisions of the Note Documents that has the effect of releasing Guarantor from any of its obligations under the Note Guaranty or any Note Documents to which it is a party, except in accordance with the terms of this Indenture, shall, in each case, require the consent of the Holders of at least 66 2/3% in Aggregate Outstanding Principal Amount.

The consent of the Holders shall not be required under this Section 9.2 with respect to any approval by the Trustee of the particular form of any proposed amendment, modification or supplement of or to any Note Document, the Parties hereby agreeing that it shall be sufficient if any such consent approves the substance of the proposed amendment, modification or supplement (as applicable). A consent to any amendment or waiver under this Indenture by any Holder of Notes given in connection with a tender of such Holder’s Notes shall not be rendered invalid by such tender.

For the avoidance of doubt, neither any amendment to, or deletion of any of the covenants described in Article IV nor any action taken in compliance with the covenants in effect at the time of such action, shall be deemed to impair or affect any rights of any Holder of Notes to receive any payment of any Principal Amount of, or premium, if any, or interest on, the Notes or to institute a suit for the enforcement of any payment on or with respect to such Holder’s Notes.

SECTION 9.3     Revocation and Effect of Consents

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Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note constitutes a continuing consent by the Holder and every subsequent Holder of such Note or any portion of such Note that evidences the same debt as the consenting Holder’s Note, even if notation of such consent is not made on such Note. However, any such Holder or subsequent Holder may revoke any such consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. When an amendment, supplement or waiver becomes effective in accordance with its terms, it thereafter binds every Holder.

The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled consent to any amendment, supplement or waiver. If the Issuer fixes any such record date, (i) such record date shall be fixed at (A) the later of thirty (30) days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished for the Trustee prior to such solicitation pursuant to Section 2.5 or (B) such other date as the Issuer shall designate and (ii) those Persons who were Holders as of such record date, and only such Persons, shall be entitled to consent to such amendment, supplement or waiver.  No such consent shall be valid or effective for more than one hundred twenty (120) days after such record date unless the requisite number of Holders otherwise agrees in writing.

SECTION 9.4     Notation on or Exchange of Notes

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The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

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Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

After any amendment, supplement or waiver under this Article IX becomes effective, the Issuer shall mail to the Holders a notice briefly describing such amendment, supplement or waiver;  provided, however, that the failure to give such notice shall not affect the validity and effect of such amendment, supplement or waiver (as applicable).

SECTION 9.5     Payment for Consent

No Obligor Party shall, nor shall any Obligor Party permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Notes or the other Note Documents unless and until such consideration is offered to all Holders and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment (as applicable); provided,  however, that if any such consents, waivers or amendments are sought in connection with an exchange offer where participation in such exchange offer is limited to Holders who are “qualified institutional buyers,” within the meaning of Rule 144A, or non-U.S. persons, within the meaning of Regulation S then any such consideration need only be offered to all Holders to whom the exchange offer is made and to be paid to all such Holders that consent, waive or agree to amend in such time frame.

SECTION 9.6     Trustee to Sign Amendments, Etc.

The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article

ARTICLE X

COLLATERAL

SECTION 10.1     Collateral.





SECTION 10.2     Suits To Protect the Collateral.









SECTION 10.3     Collateral Account.  Prior to the Effective Date, the Trustee shall have established one or more segregated trust accounts, which shall at all times hereafter until this Indenture shall have terminated, be maintained with, and under the sole control of, the Trustee and which shall be established and maintained by the Trustee at one of its corporate trust offices (which may include the New York corporate trust office) and all Collateral shall be credited thereto (such accounts, individually and/or collectively, as the context may require, the “Collateral Account”).  All cash and cash equivalents received by the Trustee from dispositions of Collateral, Liquidation Events, foreclosures on or sales of Collateral following an Event of Default or any other awards or proceeds pursuant to the Collateral Documents, including earnings, revenues, rents, issues, profits and income from the Collateral received pursuant to the Collateral Documents, shall be deposited in the Collateral Account to the extent required by this Indenture, the Collateral Documents or any Intercreditor Agreement, and thereafter shall be held, applied and/or disbursed by the Trustee in accordance with the terms of this Indenture (including, without limitation, Section 3.2,  Section 4.25 and Section 6.9).  In connection with any and all deposits to be made into the Collateral Account under this Indenture, the Trustee shall receive an Officers’ Certificate directing the Trustee to make such deposit.

SECTION 10.4     Disbursement Account.  Prior to the Effective Date, the Trustee shall have established a segregated trust account, which shall at all times hereafter until this

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Indenture shall have terminated, be maintained with, and under the sole control of, the Trustee and which shall be established and maintained by the Trustee at one of its corporate trust offices (which may include the New York corporate trust office) for the purpose of holding the balance of the Note Proceeds remaining following the initial payments of Note Proceeds pursuant to Section 4.2(b)(i) (such account, the “Disbursement Account”).  From and after the Effective Date, the Trustee (a) shall hold all such Note Proceeds in the Disbursement Account and (b) from time to time upon its receipt of a Disbursement Request, shall disburse such Note Proceeds in accordance with (and subject to) Section 4.3(g) and the other applicable terms and conditions set forth in this Indenture.

Pending the distribution of funds in the Disbursement Account in accordance with the provisions hereof and provided that no Event of Default shall exist, the Issuer may direct the Trustee to invest such funds in cash equivalents specified in such direction, such investments to mature by the times such funds are needed hereunder and such direction to certify that such funds constitute cash equivalents and that no Event of Default shall exist.  So long as no Event of Default shall exist, the Issuer may direct the Trustee to sell, liquidate or cause the redemption of any such investments and to transmit the proceeds thereof to the Issuer or its designee, in each case, to the extent permitted under this Indenture, such direction to certify that no Event of Default shall exist. Any gain or income on any investment of funds in the Disbursement Account shall be credited to the Disbursement Account. The Trustee shall have no liability for any loss incurred in connection with any investment or any sale, liquidation or redemption thereof made in accordance with the provisions of this Section 10.4.

SECTION 10.5      Obion Soy Project.  So long as no Event of Default exists, Obion PropCo shall have the right, subject to the terms and conditions of this Section 10.5 (the “Excess Land Option”) to (i) either (a) sell for fair market value the fee simple title to a portion of the vacant, undeveloped land comprising a portion of the Obion Property that is not currently being actively used by Obion PropCo, the precise delineation of which shall be determined following the Effective Date (the “Excess Land”) or (b) transfer for fair market value such Excess Land to an entity to be owned in joint venture by Obion PropCo or an Affiliate and a third party investor therein (a “JV”), in each case for the purpose of constructing a soy processing facility by one or more Persons, which may include Affiliates of Obion PropCo and (ii) enter into agreements for access and utilization of certain of its infrastructure, including, without limitation, rail, scales, roads and similar items for use by the soy processing facility (such agreements, the “Soy REA Documents” and the foregoing, collectively, the “Soy Project”).  Following any such sale or transfer pursuant to the foregoing clauses (a) or (b), the Issuer shall cause Obion PropCo to promptly distribute to the Issuer the cash proceeds of such sale or transfer (which shall, for the avoidance of doubt, be equal to such fair market value of the Excess Land or, in the event that Obion PropCo enters into a JV, its pro rata share thereof in accordance with its percentage equity interest in such JV), and, following such distribution, (A) the Issuer shall deliver the portion of such proceeds that exceeds Five Million Dollars ($5,000,000) (if applicable) to the Trustee, which amount shall be applied as a redemption of the then outstanding Notes on a pro rata basis in the same manner as is provided in Section 3.1(d) and (B) the Issuer shall hold the portion of such proceeds that does not exceed Five Million Dollars ($5,000,000) for the payment of interest on the Notes as the same shall become due and payable hereunder; provided, however that no Applicable Premium shall be due or payable in

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connection with such redemption.  The Excess Land Option shall be subject to the following terms and conditions:

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ARTICLE XI

NOTE GUARANTY

SECTION 11.1     Note Guaranty

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SECTION 11.2     Execution and Delivery

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SECTION 11.3     Subrogation

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Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by Guarantor pursuant to the provisions of Section 11.1;  provided that, if an Event of Default has occurred and is continuing, Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture, the Notes and the other Note Documents shall have been paid in full.

SECTION 11.4     Severability

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In case any provision of the Note Guaranty shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 11.5      Limitation of Guarantor’s Liability

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Guarantor, and by its acceptance hereof each Holder, confirms that it is the intention of all such parties that the Note Guaranty shall not constitute a fraudulent transfer or fraudulent conveyance for purposes of the Bankruptcy Law,  the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or similar foreign law for the relief of debtors to the extent applicable to the Note Guaranty. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantor hereby irrevocably agree that the Obligations of Guarantor shall be limited to the maximum amount that will, after giving effect to all other contingent and fixed liabilities of Guarantor that are relevant under any of the aforesaid laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under the Note Guaranty, result in the Obligations of Guarantor under the Note Guaranty not becoming voidable (or constituting a fraudulent conveyance or fraudulent transfer) under the Bankruptcy Law or other applicable laws relating to fraudulent transfer or fraudulent conveyance.

SECTION 11.6      Benefits Acknowledged

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Guarantor acknowledges that it shall receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and the other Note Documents and that the Note Guaranty and all waivers pursuant to its Guaranty are knowingly made in contemplation of such benefits.

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ARTICLE XII

MISCELLANEOUS

SECTION 12.1     Notices

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Any notice or communication by any Party to any other Party hereunder shall be duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested) or sent by electronic transmission (including e- mail) or overnight air courier Guaranteeing next day delivery, to such other Party’s address as follows:

If to the Issuer, any PropCo or the Guarantor:

Green Plains Inc. 
1811 Aksarben Drive
Omaha, NE 68106
Email: Patrich.Simpkins@gpreinc.com



With a copy to:

Green Plains Inc.
1811 Aksarben Drive
Omaha, NE 68106
Email: Michelle.Mapes@gpreinc.com
Attention: Chief Legal & Administration Officer



If to the Trustee:

Wilmington Trust, National Association

1100 N. Market Street

Wilmington, DE 19890

Attn: Administrator for Great Plains SPE LLC

Telephone: 302-636-4178

Email: djgreene@wilmingtontrust.com



with a copy to:

Any Party, by notice to the other Parties, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to the Holders or the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five (5) calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if delivered by electronic transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier promising next Business Day delivery. All notices and communications to the Trustee shall only be deemed to have been duly given upon receipt by a Responsible Officer of the Trustee.

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Any notice or communication to a Holder shall be mailed by first-class mail or by overnight air courier promising next Business Day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt.

If the Issuer sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee), in accordance with the applicable procedures of DTC, if delivered electronically.

SECTION 12.2      Certificate and Opinion as to Conditions Precedent

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Upon any request or application by the Issuer or Guarantor to the Trustee to take any action under this Indenture (other than the initial issuance of the Notes), the Issuer or Guarantor, as the case may be, shall furnish to the Trustee upon request:

SECTION 12.3     Statements Required in Certificate or Opinion

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Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

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provided,  that an issuer of an Opinion of Counsel may rely as to matters of fact on an Officer’s Certificate or a certificate of a public official.

SECTION 12.4     Rules by Trustee and Agents

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The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

SECTION 12.5     No Personal Liability of Directors, Officers, Employees and Stockholders

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No past, present or future director, officer, employee, general or limited partner, incorporator or stockholder of the Issuer shall have any personal liability for any obligations of the Issuer or Guarantor by reason of his, her or its status as such director, officer, employee, stockholder, general partner, limited partner or incorporator, under the Note Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities under the U.S. federal securities laws or other corporate laws, and it is the view of the SEC that such a waiver is against public policy.

SECTION 12.6     Governing Law

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SECTION 12.7     Waiver of Trial by Jury

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EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A  TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTY, ANY OF THE OTHER NOTE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.

SECTION 12.8     No Adverse Interpretation of Other Agreements

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This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

SECTION 12.9     Successors

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All agreements of the Issuer and the Guarantor in this Indenture, the Notes and the Note Guaranty, as applicable, shall (except as provided in Section 12.6) bind their respective successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors and assigns.

SECTION 12.10      Severability

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In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 12.11      Counterpart Originals

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SECTION 12.12     Table of Contents, Headings, Etc.

The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

SECTION 12.13     Acts of Holders

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SECTION 12.14     Trustee’s Discretion

. Whenever pursuant to this Indenture, the Trustee exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to the Trustee, the decision of the Trustee to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of the Trustee and shall be final and conclusive.  Notwithstanding anything to the contrary herein, with respect to any matter as to which this Indenture requires or provides for the Trustee to be reasonable in granting or withholding an approval or consent, while an Event of Default exists, the Trustee may grant or withhold its approval or consent to such matter in its sole discretion.

SECTION 12.15     USA Patriot Act

.   In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee.  Accordingly, each of the Obligors agree to provide the Trustee, upon their request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable AML Law.

SECTION 12.16     Force Majeure

. In no event shall the Trustee, the Registrar and/or the Paying Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, Force Majeure, it being understood that the Trustee, the Registrar and the Paying Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

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